This commentary originally appeared on Vermont Public Radio (VPR) on May 23, 2011
(HOST) The future of the Vermont Yankee Nuclear Power Plant depends upon the outcome of Entergy v. Shumlin. Commentator and Vermont Law School professor Cheryl Hanna introduces us to one of the key lawyers in the case, and the implications of her involvement.
(HANNA) It should come as no surprise that Entergy has hired Kathleen Sullivan to advise it in its case against the state of Vermont. Of course, all companies involved in this kind of complex litigation hire local counsel, and Entergy has signed on the Burlington firm of Gravel and Shea to be the public face of the case. But make no mistake; it will be Sullivan and her team of New York lawyers that are the brains behind it.
Sullivan was one of Harvard’s most beloved constitutional law professors before she left to become a professor and then Dean at Stanford Law School. The public may recognize her name from Obama’s short list for a Supreme Court appointment, and lawyers will likely recognize her as the co-author of the leading casebook on Constitutional Law. She is also no stranger to Vermont, having clerked for Judge Oakes in the Second Circuit.
Sullivan is also one the most trusted advocates before the United States Supreme Court, and has a long track record of winning cases where federal pre-emption is at issue. Sullivan has the ability to take complex legal questions and make them simple and straightforward, and knows how to guide the Court through murky waters to some clarity.
Take, for example, a major federal pre-emption case she won before the Court just a few months ago. The case involved a six-month old child who began to suffer seizures after receiving a vaccination. The child’s family sued the manufacturer of the drug, Wyeth Industries, in state court. But Wyeth claimed that such law suits were pre-empted by the National Childhood Vaccine Injury Act, which was intended to create a national scheme for providing and promoting vaccinations. At issue was what, exactly did the law say about the relationship between the states and the federal government in regulating immunization manufacturers.
Sullivan was able not only to swing Justice Kennedy to side with the Wyeth Industries, but also Justice Breyer by focusing the Court both on the specific language of the statute and the policy behind law, and by defending the ability of the FDA to oversee vaccine manufacturers.
Starting to sound familiar? The Entergy case will likewise ask the Court to interpret another federal law, the Atomic Energy Act, and whether the Nuclear Regulatory Commission’s decision to relicense should trump the state’s decision to shut down the plant.
Of course, there are many differences between the two cases, but the Wyeth decision is a clear signal that the Court’s increasingly sympathetic to industry when federal and state law conflict.
And with Sullivan on Entergy’s team, the state should be prepared to face an advocate with both personal gravitas and weighty experience with the constitutional questions involved. Entergy’s in this one for the long-haul, and the state should make clear to Vermonters that the case is far from open and shut.